The Role of the Trial Judge in Jury Selection

By John DiMotto

In his "The Dark Side" blog for the Wisconsin Law Journal, my friend, attorney David Ziemer -who is a News Editor for WLJ, recently wrote about jury service and related some anecdotes about how trial judges approach it. (It was a good blog from the perspective of a trial attorney.) I thought this would be a good time to provide a judicial perspective on jury selection and the role of the judge in the process.

The role of the trial judge in jury selection is different than that of the attorneys for the parties. The role of the attorneys in jury selection is to impanel a jury that the attorneys believes will be favorable to the his/her case. The role of the trial judge, "who should have no dog in the race" is to ensure that a fair and impartial jury is impanelled. A "fair and impartial" jury is one which will arrive at its verdict:

1) Based on the facts it finds worthy of belief from all the evidence introduced,

2) By applying the law, the legal principles, provided to the jury by the judge in the instructions,

3) By using its collective common sense and long experiences in life.

In seeking to impanel a jury that will be fair and impartial, the trial judge has great discretion in the control of the voir dire process. The following are principles that guide the conduct of the trial judge.

1) The trial judge can control the form and the number of questions. Latitude in voir dire does not extend to asking questions which mislead, confuse or misinform. In fact, where a juror merely expresses a predetermined opinion that does not disqualify the juror per se. A trial judge should follow up to see if the juror can lay aside the opinion and decided the case based on the facts introduced and the law that applies to the case. If the juror will give that assurance, the juror should not be "struck for cause" -- disqualified. see Hammill v. State, 89 Wis.2d 404(1979).

2) Selection of an impartial jury is conducted under the trial court's supervision. see State v. Van Straten, 140 Wis.2d 306 (Ct. App. 1987).

3) The test for whether a prospective juror should be struck for cause is determined based on whether the juror is biased. If a juror cannot be indifferent, the juror should be excused. see State v. Faucher, 227 Wis.2d 700 (1999).

4) Even the appearance of bias should be avoided. see State v. Louis, 156 Wis.2d 470 (1990).

5) The test for juror bias is whether there is statutory, subjective or objective bias. If it is present and a prospective juror cannot lay it aside, the prospective juror must be excused. see State v. Erickson, 227 Wis.2d 758 (1999).

6) Statutory bias is present where a juror is related by blood or marriage to any party or attorney appearing in the case, as well as those who have a financial interest in the case. These people may not serve under any circumstances. see Faucher, supra.

7) Subjective bias is revealed through words and demeanor of a prospective juror during the voir dire process. This refers to the prospective juror's state of mind. This is usually revealed by demeanor since rarely is there direct proof by the juror explicitly admitting prejudice or inability to set aside prejudice. The trial judge is in a superior position to determine this from the demeanor of the juror. see State v. Jimmie R.R., 232 Wis.2d 138 (Ct. App. 1999).

8) Objective bias if present if a reasonable person in the prospective juror's position objectively could not judge the case in a fair and impartial manner. Here the trial judge considers the facts in the case and the facts and circumstances surrounding the voir dire. There must be a connection between the prospective juror's bias and the issues or theory of the case. These attitudes must be strongly held but are not expected to be unequivocal. see State v. T. Oswald, 232 Wis.2d 62 (Ct. App. 1999). When a prospective juror's relationship to the case is such that no reasonable person in the same position could possibly be impartial even though the juror desires to set aside any bias. see State v. Czarnecki, 237 Wis.2d 794 (Ct. App. 2000).

9) Jurors are presumed to be impartial and the challenger to that presumption bears the burden of proving bias. see State v. Gilliam, 238 Wis.2d 1 (Ct. App. 2000).

10) No "magical words" need be spoken by prospective jurors and they need not affirmatively state he/she can definitely set bias aside. Prospective jurors need not respond to voir dire questions with unequivocal declarations of impartiality and they need not unambiguously state the ability to set aside a bias. The trial judge should not focus on isolated words but on the entire record. see State v. J. Oswald, 232 Wis.2d 103 (Ct. App. 1999).

11) The decision as to the subjective sincerity of a prospective juror in expressing his/her final view of fairness is within the discretion of the trial judge. see State v. Sarinske, 91 Wis.2d 14 (1979).

12) In making the determination as to whether a prospective juror should be struck for cause, trial judges are guided by the following words of the Wisconsin Supreme Court in State v. Lindell, 245 Wis.2d 689 2001):

"We take this opportunity to restate that we caution and encourage circuit courts to strike prospective jurors for cause when the circuit court reasonably suspects that juror bias exists. ... This is a decades-old standard, that encourages circuit courts 'to err on the side of striking prospective juror who appear to be biased, even if the appellate court would not reverse their determinations of impartiality. Such action will avoid the appearance of bias, and may save judicial time and resources in the long run. ... It is the appearance of partiality that gives us great pause. Jurors must not only be fair and impartial; they must also not have a relationship to either side which leaves doubt about their impartiality."

13) Where a juror believes that he/she cannot decide the case fairly on the evidence, he/she should be removed for cause. see State v. Zurfluh, 134 Wis.2d 436 (Ct. App. 1986).

What these principles convey to every trial judge is that his/her role in the voir dire process is critical and must not to be taken for granted. The trial judge must use his/her eyes and ears in the evaluation of every prospective juror to ensure that prospective jurors will be fair. In this endeavor:

1) A trial judge should not excuse "for cause" a prospective juror merely because he/she does not want to serve.

2) A trial judge should not excuse "for cause" a juror who merely says he/she cannot be fair without exploring the "why" to that statement.

3) A trial judge should excuse "for cause" a prospective juror who carries a "real" bias that can not be laid aside.

4) A trial judge should excuse "for cause" a prospective juror who because of legitimate circumstances in his/her life are such that the juror cannot give his/her time and attention to the case.

When a trial judge has concerns about the possibility of bias on the part of a prospective juror, the trial judge should do a careful, thoughtful, and thorough individual voir dire with that prospective juror making it clear to the juror that the judge is not looking for a particular answer but rather wants, needs and expects candid and honest answers to the judge's questions. A trial judge should never badger a prospective juror to seek a particular answer, however a trial judge should never let a juror manipulate the process to get out of jury service. If a trial judge believes that a prospective juror is being less than candid in order to avoid service the judge must "challenge" that juror for the truth.

When a trial judge is confronted with a prospective juror who does not present with a statutory, subjective or objective bias but is seeking to be excused for some other reason, a trial judge has the responsibility to follow up as well. For example:

1) If a prospective juror's service will cause a very real and significant financial hardship, that should be given serious consideration in these very difficult economic times.

2) If a prospective juror has a parent or spouse or child who is seriously ill and service will interfere with the prospective juror's obligation to that individual, that should be given serious consideration.

3) However, mere inconvenience should never be countenanced.

Jury service should not be such that it can easily be avoided. In our country, we are blessed to have many "rights" that are the envy of people throughout the world. However, along with our "rights" we have "responsibilities." Jury service is one of those responsibilities. Only is there is a bias that cannot be set aside or life circumstances so important that they trump jury service should prospective jurors be excused. It is the responsibility of the trial judge to oversee the voir dire process and maintain the integrity of the jury system.